Judges can make poor decisions about asylum seekers

Embargoed until 05 June 2009

Judges often make poor decisions about the
stories asylum seekers tell them because their decisions are based
on false assumptions.

Dr Stuart Turner, a psychiatrist who runs the
Trauma Clinic in London and is Immediate Past President of the
International Society for Traumatic Stress Studies, told the Annual
Meeting of the Royal College of Psychiatrists in Liverpool that
judges often had little information on which to base their
decisions.

Few asylum seekers had passports or records of
their abuse and so the judges relied on their stories. He told the
Annual Meeting there was a “positive bias” against asylum seekers,
based on a judicial belief that if a story was true then the
details would remain consistent with each telling.

“It’s a common lay assumption that if the
details of a story remain the same then the story is true,” said Dr
Turner. “But with trauma memories the focus is on the central
event, not the peripheral detail. If consistency is used as the
gold standard test of credibility, then the most traumatised will
be disadvantaged.”

He said an average of 24,250 asylum seekers a
year arrived in Britain between 2005 and 2007. In 2006, 79 per cent
were refused entry; but 22 per cent of these decisions were
subsequently overturned. Some 7,795 of those whose cases were not
overturned applied for further review and 2,845 applied for
judicial review.

The fact that a fifth of the initial decisions
were overturned indicates that judges were making erroneous
decisions, Dr Turner argued. He said judges were “mirroring their
own assumptions” about the world and how people would behave.

He said: “Judges are applying things from
their own experience and that may not be relevant to trafficked
women, asylum seekers or torture survivors, or people who have been
sexually violated. Judges many not have a clue about how people in
those situations may behave.”

Asylum seekers as a group had an increased
risk of emotional disturbance because of the trauma that they have
endured, Dr Turner told delegates.

In an analysis of a large group of Kosovan and
Albanian refugees arriving in the UK after the NATO bombing of
Serbia in 1999, 21 per cent reported feelings of anxiety and 17 per
cent were worried about their family and friends. Some
were suffering from post-traumatic stress disorder (PTSD).

However, such emotional trauma and its impact
on behaviour was not fully grasped by some judges, Dr Turner said.
“For instance, one asylum seeker said that he had been tortured
every day for three months by the authorities of his country about
the whereabouts of his brother. The judge concluded that the man
was a liar on the basis that the authorities would not continue to
torture every day.” Another judge failed to understand why a woman
had not immediately reported to the British authorities that she
had been raped.

Dr Turner emphasised that he was not
criticising decisions the judges made, as they had little evidence
on which to base them. It was, he said, “an extraordinarily
difficult job”, and it was natural that they should base their
decisions on their common sense.

”However, there may be a gap between their
commonsense and empirical information and I am questioning whether
the assumptions they make about the behaviour of asylum seekers are
well-founded assumptions.”

Dr Turner and his colleagues set up the Centre
for the Study of Emotions and Law, a year ago. Their research shows
that consistency in the re-telling of stories is a poor way of
assessing credibility – around 30 per cent of asylum seekers change
the details in their stories. Moreover, those suffering from PTSD
are even more inconsistent in recalling detail.

“What we want is to give the judiciary
empirical information to help work out what the right assumptions
might be,” he concluded. “We want science to inform their
decisions. There are a lot of areas where there is no empirical
information – what happens when you’ve been sexually assaulted? Do
you stay in your village? Do you run away? Judge A might make one
assumption and Judge B another.”